Court v. Court ( 1986 )

WILNER, Judge,

dissenting.

Respectfully, and with some embarrassment, I dissent. The respect needs no elucidation; it is for the legal brilliance of my colleagues on the panel and for the fact that, despite what I think, I may be wrong. My embarrassment stems from the fact that I had a hand in writing the statute at issue here, a statute that I now find ambiguous.

The authority for a court to enter a use and possession order came into the law in 1978 as part of the recommendations of the January, 1978, Governor’s Commission on Domestic Relations Laws. It was a unique provision, in that it marked the only exception to the Commission’s (and the Legislature’s) expressed view that courts in domestic relations cases should not be free to deal with property in derogation of title. In this one instance, limited to the “family home” and “family use personal property,” a court can award temporary exclusive possession to one spouse without regard to title.

There are two aspects to the matter. First, the property must qualify as a “family home” or “family use personal property,” both of which are defined terms in the statute. See Fam.Law art., § 8-201(c) and (d).¹ If the property does not fall within the scope of the definition, it cannot be subjected to a use and possession order, whatever may be the circumstances. The second aspect, assuming the property qualifies, is whether there ought to be a use and possession order. That is largely a matter of court discretion, the criteria for the exercise of which are set forth in Fam.Law art., § 8-208.

The problem here concerns the definition. Section 8-201(c) defines “family home” as “the property in this State that:

(i) was used as the principal residence of the parties when they lived together;

(ii) is owned or leased by 1 or both of the parties at the time of the proceeding; and

(iii) is being used or will be used as a principal residence by 1 or both of the parties and a child.”

These are three separate tests, and all must be satisfied. There is no question as to (ii) or (iii); they are clearly met. The problem is with (i); does it mean a property that was used at any time by the parties as their principal residence, as the majority assumes, or the property that was used as the principal residence just before the separation? Therein lies the ambiguity. I think it means the latter, and for that reason, I would conclude that the Conduit Street property does not qualify as the parties’ “family home.”

Section 8-206 sets forth, rather clearly in my view, the legislative policy behind the authority vested in the court to enter a use and possession order. It states that the court shall exercise its powers under §§ 8-207—8-213—the sections dealing with use and possession orders:

“(1) to enable any child of the family to continue to live in the environment and community that are familiar to the child; and

(2) to provide for the continued occupancy of the family home and possession and use of family use personal property by a party with custody of a child who has a need to live in that home.” (Emphasis added.)

That policy fully reflects the thinking of the Governor’s Commission. See Commission Report (January, 1978), p. 12. Indeed, in rejecting the suggestion that Maryland adopt a form of community property—that all property simply be divided in half upon a divorce—the Commission observed on p. 4 of its Report:

“It virtually assures that neither spouse, (nor, therefore, their minor children) will be able to continue living in the family home. Each party will have a half interest in the home, so that unless there be some agreement of the parties the home—and the appliances, furniture, and furnishings in it—will have to be sold in order that each may recover the value of his or her interest. Thus, whatever stability might perchance have survived the breakup of the marriage itself will likely be further eroded, and children will frequently be uprooted from the neighborhood they know. The first disadvantage, therefore, is the concomitant psychological trauma to the parties and their children.”

I recognize the “cardinal rules” of statutory construction, the most “cardinal” of which is to carry out the true intention of the Legislature. It is certainly possible to read § 8-201(c)(i) as including any property (not otherwise excluded) that was ever used by the parties as their principal residence. That is how the majority reads the statute, and, if read totally in isolation, it would not be an unreasonable construction. But, when read in context with § 8-206, it can hardly be what the Legislature intended. Such a reading would be wholly inconsistent with § 8-206. The absurdities that it could very logically lead to are self evident, and indeed are illustrated by this very case.

The Conduit Street property has not been the family home—at least was not occupied as such—since the summer of 1980. It was rented out, and, on one occasion, nearly sold. For four years, Mrs. Court and the children lived at or near Galesville, which appears on a Maryland map to be some 8 to 10 miles south of Annapolis and clearly nowhere in the vicinity of Conduit Street. Whatever may have been the case in 1980 when Mr. Court went to sea, by 1984 it cannot reasonably be said that Conduit Street was “the environment and community that [were] familiar to the child[ren].”

I do not suggest that § 8-201(c)(i) must be read so strictly as to include only that property that the parties occupied on the very day before their separation. Separations may be preceded by temporary moves by one spouse or the other without an intention to abandon the real marital home. But a four-year hiatus, only a quarter of which was occasioned by the exigency of Mr. Court’s wanderlust, bursts whatever elasticity there may be in the statute. The use and possession order entered in this case did not provide for “continued occupancy of the family home” and did not allow the children to “continue to live in the environment and community that are familiar” to them. (Emphasis added.) Indeed, it uprooted the children for a third time and returned them to a neighborhood that Christina, age 10, hadn’t lived in since she was 6, and Mimi, age 13, hadn’t lived in since she was 9.

I would vacate the use and possession order and remand the case for the court to reconsider alimony, child support, and a monetary award in light of that. As a tenant in common, of course, Mrs. Court has an equal right to continued possession until such time as the property is sold.

1 . The Family Law article took effect October 1, 1984, which was after the trial in this case. It merely recodified, without substantive change, the provisions of former Courts & Judicial Proceedings art., § 3-6A-01, et seq. For convenience, I shall cite to the current law.